A lert
ENVIRONMENTAL
JULY 2001
Environmental Justice Lawsuits Under Scrutiny
“Environmental Justice” is an elusive goal that the United
States Environmental Protection Agency and state
environmental agencies have been striving to define for
years. The core concept of Environmental Justice is that
the impacts of industrial development should not disparately
affect communities on a racial or ethnic basis. However,
elaborating the core concept as a component of
environmental regulatory programs has been difficult. The
agencies are still thinking through the policy implications,
but opponents of industrial projects are not waiting for the
regulators and are taking the issue into the courtroom. The
combination of agency indecision and private litigation has
created uncertainty in site selection for new industrial
facilities, jeopardized the expansion or upgrade of existing
facilities and even threatens to embroil routine re-permitting
decisions in controversy.1
The principal springboard for Environmental Justice is Title
VI of the Civil Rights Act of 1964. Section 601 of Title VI
prohibits intentional discrimination on the basis of race or
ethnicity in any program receiving federal funds.2 Section
602 of Title VI directs federal agencies to promulgate
regulations to effectuate the purposes of the preceding
section.3 In the early 1980s, EPA, along with at least 39
other federal agencies, adopted model regulations that were
developed by the Department of Justice. These regulations
go beyond prohibiting intentional discrimination. They
prohibit the use, by a recipient of a federal grant, of any
“criteria or methods of administering its program which
have the effect of subjecting individuals to discrimination
because of their race, color, national origin, or sex.”4
This prohibition on even unintended, statistical “disparate
impacts” created a policy morass for the EPA that it is still
trying to resolve 17 years after adopting the regulations.
The EPA’s most recent efforts are its Draft Title VI Guidance
for EPA Assistance Recipients Administering
Environmental Permitting Programs and its Draft Revised
Guidance for Investigating Title VI Administrative
Complaints Challenging Permits. 5 These non-final
documents raise as many questions as they answer.
Guidance came from a different source than the EPA when
the United States Supreme Court decided in April that
disparate-impact regulations did not create a private right
to sue under Title VI. In Alexander v. Sandoval,6 the Court
reversed a judgment in favor of a Spanish-speaking resident
who challenged Alabama’s English-only driver’s license
test under regulations of the U.S. Department of
Transportation that are essentially identical to the EPA’s.
The 5-4 majority questioned the validity of the regulations
on the grounds that they went far beyond merely
“effectuating” the ban on intentional discrimination, but
did not rule on their validity. The Sandoval majority also
left open the question of whether the regulations could be
the basis for a classic “Section-1983” civil-rights action,7
although Justice Stevens’ dissent invited such lawsuits.
A month after the Sandoval decision, the United States
District Court for New Jersey issued an opinion on issues
the Supreme Court left open. Performing what amounted to
federal judicial review of a state environmental permit, the
court enjoined the construction of a cement plant in an
industrial zone near a predominantly minority residential
area. 8 The court held that the EPA’s disparate-impact
regulations were enforceable in a Section-1983 civil-rights
action. The project developer had satisfied New Jersey’s
criteria for an air emissions permit (which also satisfied
New Jersey’s state implementation plan (“SIP”) under the
federal Clean Air Act). But the court held that, under the
EPA’s regulations, New Jersey’s Department of
Environmental Protection should have considered broader
effects, such as noise, fumes and dust from truck traffic, on
the nearby residential community.
The district court’s finding raises, but does not resolve,
dilemmas for both regulators and project developers: where
could such a plant be built that it would not cause a disparate
impact on some racial or ethnic group? The regulations on
their face do not limit their application to racial or ethnic
minorities. The nation and most of the fifty states are
racially and ethnically diverse. If the project were moved
Kirkpatrick & Lockhart LLP
not far to the west, for example, the company would find
itself in Lancaster County, Pennsylvania, with a large
Pennsylvania-German population. Would similar effects
be challengeable by the dominant ethnic or racial group
there? Would the regulations be an obstacle to industrial
redevelopment of Pittsburgh’s “Steel Valley,” where various
racial and ethnic groups still live in residential clusters near
the former mills? The district court’s decision may put
another arrow in the quiver of anyone, anywhere who seeks
to forestall new development.
The district court’s decision also, in effect, mutated New
Jersey’s air emissions permit, with its objective criteria keyed
to NAAQS, into an omnibus permit that becomes the vehicle
for “consideration of the totality of the health and
environmental circumstances of the community.”9 The court
imported traditional zoning and subdivision concerns into
what had been a single-medium-specific environmental
permit. Although the district court and the parties focused
only on impacts that were related to health or environment,
a future protestant, using the same analysis, might allege a
“disparate impact” that goes even farther outside the
mission of the permitting agency, e.g., an impact on the
property values of homeowners. Yet, if the project would
lower residential property values in neighborhoods of racial
or ethnic minorities, would it likely do the same in a majority
neighborhood? Or, if the cement plant were moved from
South Camden’s waterfront to an ex-urban “greenfield,”
would the developer and the agency face a disparate-impact
claim based on the resulting inaccessibility of jobs to
minorities, who tend to have less mobility than others? If
“disparate impacts” can be perceived in every case, are
project developers and permitting agencies paralyzed?
Ironically, the New Jersey district court did not consider
the role that EPA itself played. EPA not only gave New
Jersey the federal grant that triggered Title VI of the Civil
Rights Act, but it also approved New Jersey’s SIP, which
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set forth “criteria and methods” in detail.10 Yet the EPA’s
decisions approving the very criteria and methods that
allegedly cause a disparate impact have not been judicially
reviewed. Instead, the district court chastised the harried
state agency and the hapless permit applicant for following
the dictates of the Clean Air Act.
Some of these concerns may soon be addressed in an appeal
from the New Jersey district court’s injunction. The Court
of Appeals for the Third Circuit has not only expedited the
appeal, but has stayed the injunction, pending appeal. The
Third Circuit found that the appeal is likely to succeed on
the merits, i.e., that there is no right to use the disparateimpact regulations as the basis for a Section-1983 civilrights suit.11 The Third Circuit has listed the case for
argument in September.
In order to determine whether there is a viable civil rights
case, the Third Circuit will have to determine, among other
things, whether the claimed private rights are so “vague
and amorphous as to strain judicial competence.” 12
Accordingly, the Third Circuit may well consider some of
the policy dilemmas faced by the permitting agency and
the project developer. The court’s resolution of this appeal
will, we hope, provide some guidance, not just on the private
right to sue, but on the validity and scope of the EPA’s
disparate-impact regulations as well.
A reversal of the district court by the Third Circuit would
not end concerns about Environmental Justice. Even if
private persons cannot use the EPA’s regulations as a basis for lawsuits, they may still file administrative complaints
with the agency. Moreover, the states have the ability to
develop their own versions of disparate-impact policies. 13
These policies need to be rigorously analyzed as they
emerge to make sure that they are effective, objective and
fair to all interests.
See, Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925
(3d Cir. 1997), vacated as moot, 119 S.Ct.22 (1998)).
42 U.S.C. § 2000d.
42 U.S.C. § 2000d-1.
40 C.F.R. §7.35(b).
Both published on June 27, 2000. 65 F.R.39650 et seq.
121 S.Ct. 1511 (2001).
42 U.S.C. §1983.
South Camden Citizens in Action v. New Jersey Department of Environmental Protection II, No. 01-702, 2001 WL 491965 (D.N.J. May 10, 2001).
South Camden Citizens in Action I, No. 01-702, 2001 WL 392472 at *8
(D.N.J. April 19, 2001).
See 40 C.F.R. Part 52, Subpart FF.
Order in South Camden Citizens in Action v. New Jersey Department of
Environmental Protection, No. 01-2296 (3d. Cir. June 15, 2001).
One of the elements of the test for finding a private right of action. See,
Blessing v. Freestone, 520 U.S. 329, 340-41 (1997).
See, e.g., Environmental Justice Work Group, Report to the Pennsylvania
Department of Environmental Protection (June 2001),
www.dep.state.pa.us/environmentalequity/EJReportFinal.doc
JOHN P
P.. KRILL, JR.
jkrill@kl.com or 717.231.4505
Kirkpatrick & Lockhart LLP served as counsel for amici curiae in the
Sandoval case in the United States Supreme Court and is participating
on behalf of amici curiae in the Third Circuit case discussed above. For
more information on this case or K&L’s environmental practice, please
consult the author or one of the office contacts listed below. You may
also visit our webpage at www.kl.com.
John P. Krill, Jr.
Harrisburg 717.231.4505 jkrill@kl.com
Barry M. Hartman Washington 202.778.9338 bhartman@kl.com
Rick Hosking
Pittsburgh 412.355.8612 rhosking@kl.com
Roger Zehntner
Boston
617.261.3149 rzehntner@kl.com
Kirkpatrick & Lockhart LLP
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should not be used or relied upon in regard to any particular facts or circumstances without first consulting with a lawyer.
© 2001 KIRKPATRICK & LOCKHART LLP.
ALL RIGHTS RESERVED.